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The Study Of Presumption In Criminal And Civil Procedures

Posted on:2008-08-05Degree:DoctorType:Dissertation
Country:ChinaCandidate:P JiaoFull Text:PDF
GTID:1116360218461335Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
The theoretical study and disciplinary construction of law of evidence is going to its perfection in China. In law of evidence, it seems that presumption is not in harmony with the principle of evidence-based adjudication, but it has never been discarded in the history of judicial adjudication. Presumption is an unavoidable subject in the development of Chinese law of evidence. Seen from its etymology and meaning, the word presumption keeps its basic meaning after it becomes a legal term. Presumption in criminal and civil procedures has long existed in history, but there is a discrepancy between its wide application and its lack in legislation in China at present. Theory falls far behind practice.This thesis studies presumption as a way of finding out the facts, distinguishes presumption of law and presumption of fact, and points out the exact branch of discipline where presumption belongs.This thesis discusses in detail the supplementary conditions in the application of presumption, the distinctions between presumption and the burden of proof, and the necessity of various standards of proof.The application of presumption in criminal procedure neither violates the principle of presumption of innocence nor represents the principle of presumption of guilt. Presumption as a way of fact-finding is widely used in criminal procedure throughout the world. The presumption of the capacity for responsibility Qiu Xinghua's case, and the presumption of the truth of the inquisition record in Liu Yong's case, reveals the disorder of the application of presumption in Chinese criminal procedure. There are problems in the application of presumption in civil procedure too, such as in the recent cases of default wage and medical accident. To avoid these imperfections in presumption and its application in future, this thesis puts forward a list of proposals for relative legislation.
Keywords/Search Tags:presumption, the application of presumption, the general norm for presumption, the particular norm for presumption, ways of fact-finding
PDF Full Text Request
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